Dunne case will put Nama in dock
Receivership decision against developer to be under spotlight in US court questioning, writes Ronald Quinlan
Published 24/02/2013 | 04:00
SITTING in the full glare of the TV cameras in Judge Brazzel-Massaro's courtroom in Stamford, Connecticut, last Tuesday afternoon, Gayle Killilea-Dunne looked to be distinctly uncomfortable.
For those who know the former journalist turned property developer, it was unusual to see her near legendary confidence replaced by something even approaching vulnerability.
For Killilea-Dunne's detractors here at home, it may have even been gratifying to see her being chased along with her husband, developer Sean Dunne, by the National Asset Management Agency (Nama) through the courts of the US, a country where when justice is done, it is seen to be done.
But for anyone who thinks that the case now being pursued by the State's so-called 'bad bank' against Ireland's one-time golden couple over the alleged fraudulent transfer of property is one that's open and shut, they may need to think again.
Last Tuesday, Judge Brazzel-Massaro granted a request from Killilea-Dunne's lawyers to have Nama CEO Brendan McDonagh swear a statement and make himself available to them for questioning in a private deposition.
While she refused to remove a protective order preventing Mr McDonagh's deposition a witness, she left it up to both sides to decide a date for McDonagh's deposition. She directed that another Nama manager, John Coleman, be questioned by Killilea-Dunne's lawyers under oath at an eight-hour sitting next month.
The unexpected grilling of McDonagh on his knowledge of Sean Dunne's business, Nama's ultimate decision to put him into receivership and to obtain a judgement for €185m against him may end up marking the beginning of an embarrassing episode for the agency, in which its hugely secretive decision-making process is opened up to a level of scrutiny it has so far successfully resisted here in Ireland.
The Sunday Independent understands that in the course of defending themselves against Nama's claims that they engaged in the fraudulent transfer of four properties in the US as well as properties in Ireland and Switzerland, the Dunnes will seek to elicit information in relation to Nama's view of Sean Dunne's original business plan and its decision to take enforcement action against him.
Should lawyers for the couple secure information in the course of questioning the Nama CEO which even hints at the possibility that Nama's decision to put the former Baron of Ballsbridge into receivership was in any way predetermined, serious questions will be asked about the manner in which it conducts its business.
While neither side in the case was prepared this weekend to comment on the deliberations which had accompanied the consideration of Dunne's business plan through its various stages, or on the decision to appoint receivers to his business, an investigation by the Sunday Independent has unearthed information which at the very least suggests the former Baron of Ballsbridge was facing an uphill battle with the agency almost from the beginning.
While Sean Dunne was officially recorded on Nama's books as 'connection 0039', – or its 39th biggest borrower – he must have felt like public enemy number one on November 30, 2010, the day his business plan was first brought to Nama's credit committee for its consideration by portfolio management.
With the country teetering on the brink of bankruptcy, the Government had only 24 hours earlier applied to the EU and the IMF for a €67.5bn bailout. Together with the €17.5bn which would be plundered from Ireland's reserves and pensions, the cost of the overall package would come to €85bn.
Given those numbers, only a fool would have bet on the Carlow-born developer securing the support of Nama's credit committee just a day later.
That's not to say the committee's members had their minds made up before they sat down to hear the recommendations of Nama's portfolio managers for Dunne and his future as a property developer.
By the time the presentation was finished, however, it must have been abundantly clear to everyone in the room that quite apart from his €892m in borrowings, Dunne was living on borrowed time too.
Never mind that an analysis of his companies' properties showed that 57 per cent of them were located in "strong city centre locations" such as City Quay and North Wall Quay in Dublin's docklands; as far as Nama's portfolio managers were concerned, Dunne's plans for development were not viable in either the short or medium term due to an oversupply of office space in the capital.
Just where that view sits now in the light of Nama chairman Frank Daly's announcement last Thursday of Nama's intentions to proceed with development at North Wall Quay to meet demand for commercial office space is anybody's guess.
But a difference in opinion on the need to provide more office space in Dublin's IFSC is understood to have been just one factor for the Nama officials who recommended what they described as a 'two phase strategy' for the 'Sean Dunne connection'. Phase one of that strategy would have seen a consensual disposal of assets. Phase two was to have seen enforcement in parallel with consensual negotiations.
Also informing Nama's portfolio managers' recommendation to a great extent was the developer's request for some €275m in additional funding from Nama and his other syndicated banks to build out his companies' assets. It is understood that some €196m of this would have been requested from the State's 'bad bank'.
With the agency's portfolio management team estimating that it would cost a relatively paltry €28m to bring the existing properties in Dunne's portfolio to a condition where they could be rented or sold, the numbers were clearly stacked against him securing support for his business plan. Going against Dunne was the potential €31m in rental income Nama officials estimated the agency would secure over the next 10 years from his properties were it to enforce against him as opposed to working with him consensually.
In arriving at their view that there would be no "net benefit" to working with Sean Dunne, the Sunday Independent understands, from sources close to the agency, that Nama's portfolio management cited three reasons for working with the developer and six reasons why they shouldn't.
Quite apart from the significant financial outlay the agency's officials believed would be required to bring Dunne's plans for his portfolio to fruition, the Sunday Independent understands from impeccable sources that the developer's €538m exposure to his other banks coupled with the refusal of his wife, Gayle Killilea-Dunne, and his three children from his first marriage to provide statements of their net worth to Nama weighed heavily against him.
This despite the fact that the agency's credit committee was informed on November 30, 2010, that Nama's own legal department had confirmed that neither Killilea-Dunne nor his three adult children were legally obliged to complete a net worth statement.
The suspicions of Nama's portfolio management team in relation to Sean Dunne and his family went far beyond their respective bank balances however.
Sources familiar with the details of the agency's deliberations have told this newspaper that having received a list of assets transferred by the developer to related parties from the previous three years, Nama lengthened the request to five years in an effort to capture fresh information.
And while the toxic loan agency's officials had their suspicions in relation to the assets of Gayle Killilea, informed sources have confirmed that when Nama's credit committee came to assess Sean Dunne's business plan in November 2010, all they had to go on in this regard were 'reports' that the former journalist had acquired Walford, Ireland's most expensive home, for €57m in 2005.
It is understood that Dunne's portfolio managers expressed their view that Killilea-Dunne's finances and her alleged purchase of Walford needed to be investigated further. This despite the fact that Nama's Credit and Risk department had already confirmed that Killilea-Dunne was neither a borrower nor a guarantor of any Nama loan facilities.
However wealthy Nama believed Sean Dunne's wife to be, their efforts to recover monies from the developer himself were severely curtailed by the reversal of fortune he experienced as a result of the property crash. According to his statement of net worth and sworn declarations provided to the agency, the developer had net liabilities of €612m.
Leaving aside his companies' massive debts, the Dunnes' family home on Shrewsbury Road had plummeted in value from the €20m it was worth in October 2006 to €7.5m by 2010.
Making matters worse for Dunne, however, was the €11.9m still owed on the property to Bank of Scotland (Ireland), which put him in negative equity to the tune of €4.4m.
Compounding his difficulties further were several ongoing pieces of litigation, but more particularly Nama's interest in their outcome.
Elsewhere, Nama is understood to have had serious concerns arising from a loan Dunne received from the Cork-based developer Michael O'Flynn in 2006, on foot of a deal the two men entered into on 65 acres of agricultural land in Kildare.
Sources close to the agency say that O'Flynn borrowed €65m (€80m once interest was applied) from the Irish Nationwide Building Society and lent it on to Dunne as part of an arrangement where once 70 per cent of the Kildare lands had been rezoned for residential purposes, the money would not be repayable to him. As the required planning permission was not given, the loans became repayable to O'Flynn.
While Nama's case against Sean Dunne and his wife Gayle may have embarrassed them at the beginning, it may well end up being far more embarrassing for the agency itself.